Thursday, 1 November 2007

Chief Justice Ahmad Fairuz Retires Without the 6-month Extension

".... Sadly, I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past.

(Judges) must be sensitive to the feelings of all parties, irrespective of race, religion or creed, and be careful not to bring a predisposed mind to an issue before them that is capable of being misconstrued by the watching public or segments of them.

I have found it necessary to speak at some length on these matters because it is my earnest hope that the Malaysian judiciary will regain the public’s confidence and it will once again be held in high esteem as it once was held.”-Sultan of Perak, Azlan Shah

Ahmad Fairuz retired from the top post under a cloud of controversy after he was implicated in a video clip talking to senior lawyer VK Lingam on appointing ‘friendly’ judges to the higher courts.

Ahmad Fairuz would be one of the few CJs in the history of Malaysian judiciary not to be given an extension. He had applied to the Yang di-Pertuan Agong in July for a six-month extension.

It is a known practice for retiring CJs to apply for a six months' extension.

Court of Appeal president Abdul Hamid Mohamad was today appointed as the acting chief justice with immediate effect, Prime Minister Abdullah Ahmad Badawi announced today.

Penang-born Abdul Hamid was just recently appointed as the head of the appellate court on Sept 5. He had joined the legal service in 1969.

Abdul Hamid was appointed as a judicial commissioner of High Court Malaya in 1990 and two years later as a High Court judge. He was appointed to the Court of Appeal in September 2000 and in August 2003 was elevated to the Federal Court. He has one more year to go to reach his compulsory retirement age.

Thank you very much for portraying the truth about the state of the country’s judiciary and your accompanying clarion call for major reforms in the judiciary during your opening address at the 14th Malaysian Law Conference recently.

You acknowledged with sadness that“there has been some disquiet about our judiciary over the past few years and in the more recent past…there have been even more disturbing events relating to the judiciary reported in the press”.

“We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgments delivered by our higher courts in a chapter under the heading ‘When Justice is Not Administered According to Law’.”

You highlighted “serious criticisms” against the judiciary such as delayed judgments and backlog in cases as a result of incompetence. You gave the example of a case of medical negligence involving a death of a lawyer which took 23 years to reach the Court of Appeal.

“Similarly there have been reports that some judges have taken years to write their grounds of judgments involving accused persons who have been convicted and languishing in death row.” (Like the judge who failed to deliver 35 judgments including four in which the convicted are languishing in jail despite being sentenced to death seven years ago?)

“Surely, such a situation cannot be tolerated in any progressive nation,” Your Royal Highness so very aptly concluded. The powers that be should therefore understand why the lawyers walked, the people talked and the rest blogged.

You have rightly pointed out that this is not the first time that you have expressed grave concern over the judiciary: “In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.”

Your Royal Highness had in June 2004 warned that “the erosion of public confidence in the judiciary’s independence would ultimately lead to instability and remedying it would be a protracted and arduous task.”

But, very evidently, the tell-me-the-truth Government has not been listening (even though it claims to be open).

After saying that you had given a “very good speech” Minister in the Prime Minister’s Department, who is also the de facto Law Minister, Mohamed Nazri Abdul Aziz, told the press that the state of the judiciary that you had described was merely your “perception”.

Clearly contradicting the scenario that you had painted in your opening address, Nazri very proudly and loudly declared to the press that “there was no erosion of public confidence in the judiciary” (NST, 30.10.07).

You stressed in your opening address: “In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.”

When asked to comment on public confidence being an integral part of the judiciary Nazri said: “I agree but the public... what is the public? Does the public mean 1,000 or 2,000 people or the whole nation?” It was just as good as him saying “Does the public mean the voice of one Sultan?”

Your Royal Highness, if we were to apply and follow Nazri’s arguments and the twisted logic which he had used to arrive at his arguments, which appeared in a NST interview (28.10.07), your grave concerns would be deemed as “a false allegation”, a “perception created by some people…who are unhappy, make a lot of noise…”

Yours (according to the Minister) will be a view of the “minority”.

Nazri had also insisted that there isn’t a crisis in the judiciary and that “(c)risis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about?

The crisis is in the minds of those who created it.”

The NST interview caused Opposition Leader Lim Kit Siang to ask: “Will the de facto Law Minister, Datuk Seri Nazri Aziz dismiss Sultan Azlan Shah’s increasing “disquiet” about the crisis of confidence in the judiciary as a “false” perception and baseless allegation of one person, in the way he dismissed the concern of Malaysian Bar on the ground that it is no “big deal” as only 1,000 out of 13,000 lawyers or 26 million Malaysians had taken part in the “Walk for Justice” to the Prime Minister’s Office in Putrajaya?”

It now appears that the independence and future of the judiciary in our beloved country depends very much on the perception of one man – Mohamed Nazri Abdul Aziz. He had even made it very clear (last year) that we have to ‘convince’ him first if things are to improve significantly in the judiciary.

Perhaps Your Royal Highness could educate the minister with what you had written in the postscript to your book “Constitutional Monarchy, Rule of Law and Good Governance” (pp 399 – 401) in April 2004: “… statements made as to its independence (of the judiciary) by the judges, or even the politicians (my emphasis), do not measure public confidence in the judiciary. At the end of the day, it is this public perception that ultimately matters.”

As for the de facto Law Minister’s seeking refuge under the “silent majority” as “the public”, Nazri’s predecessor, Rais Yatim, who wrote “Freedom under Executive Power In Malaysia: A Study of Executive Supremacy”, would be able to unveil the Minister’s cheap and stale political trick:

The “…supremacy of the executive can be achieved and maintained within the so-called democratic process through political manipulations. This is exemplified by the very mechanism of democracy, namely, majoritism, which since Merdeka in 1957 the executive branch of government in Malaysia has been able to render subservient both the judiciary as well as the parliament.”

Your Royal Highness, one can understand why you are “driven nostalgically to look back to a time when our judiciary was the pride of the region and our neighbours spoke admiringly of our legal system” and we were then “second to none and the judgments of our courts were quoted confidently in other common law jurisdictions”.

Today, we are driven nauseatingly to look back at our judiciary.

The region and our neighbours still talk about us. We have become a laughing stock.

We are second to none when it comes to kangaroo courts and court jesters like the de facto Law Minister.

The judgments of our courts are often quoted in political satire and online comic scripts.

May Your Royal Highness continue to speak out boldly on common law jurisdictions and the judiciary on behalf of the common man (and woman) as it has become increasingly common knowledge to many of us that we are being led by a Government tragically lacking in common sense.